Chu on The Fascist Origin of Modern Chinese Criminal Law? Revisiting Attilio Lavagna's Contribution to the Chinese Penal Code of 1935

Ming-hsi Chu, Northwestern University Department of History, has published The Fascist Origin of Modern Chinese Criminal Law? Revisiting Attilio Lavagna’s Contribution to the Chinese Penal Code of 1935. Here is the abstract.

The Chinese Nationalist Government established the Drafting Committee of Penal Code in 1931 and invited Attilio Lavagna, a judge at the Turin Court of Appeal in Fascist Italy, as legal advisor. The penal code was passed by the Chinese legislature in 1934, took effect in 1935, and is currently in force in Taiwan. This paper delves into Chinese and Italian archives to investigate possible Fascist legacies of Chinese criminal law. Lavagna and other Italian scholars have claimed that the 1930 Italian Penal Code and Fascist legal principles influenced Chinese legislators. During his two years in China, Lavagna published in law journals, commented on penal code drafts, and lectured to legislators, judges, and scholars on Fascism. He highlighted three principles of Fascist law: power, order, and fairness, and reported to the Italian Ministry of Foreign Affairs that the Chinese audience was highly interested in exploring Fascism. Enrico Altavilla argued in 1938 that China had modeled after the Italian penal code in terms of territoriality, prohibition against analogy, security measures, subjective principles, and positive criminology theories. Historians of Sino-Italian relations have underscored Lavagna’s contribution to Chinese law. This paper, however, finds that Italian Fascism’s influence was insignificant. Lavagna’s suggestions only focused on technical issues such as how many punishment choices judges should have. Altavilla’s arguments are imprecise because most articles he discussed already appeared in earlier drafts before Lavagna’s arrival. Rather, this paper emphasizes that subjective principles and positive theories were part of the global trend of criminal legislation in the 1930s.

Download the text from SSRN at the link.